Professor of Law, UCLA School of Law; Chair, Department of African American Studies

More Than What Is: What Ought to Be

10/24/2015 03:00 pm ETUpdated
Oct 24, 2016

The controversy continues to rage over the decision by UCLA's administration to temporarily suspend the social activities of a sorority and fraternity for holding a "Kanye Western" themed party in which white students put on sagging pants, big chains, dark makeup on their faces and mimicked big butts, a la Kim Kardashian. A recent Atlantic article, "The Anti- Free-Speech Movement at UCLA," asserts that the school's decision represents an assault on free speech rights because, citing one scholar's opinion about the current legal standard, the University's action punishes speech based on its content. Underlying the critique is the assumption that a neutral rule permitting racist and anti-racist speech is fair because it places all students on equal ground.

Nothing could be further from the truth. The ground is anything but equal when it comes to who is vulnerable to the consequences of racist stereotypes. Balancing the guarantee of freedom of expression with the right to be free of racist oppression underlies this dispute and illustrates why the debate over the students' conduct must go beyond the question of what the law is, and consider the question of what the law should be. The standard of what counts as an unconstitutional regulation is not so cut and dried or static. If we consider the evolution of the constitutional standard around the Second Amendment and the right to bear arms, or whether the constitution bans gay marriage, it is clear that the meaning of a constitutional provision is not only subject to debate, but is subject to change.

That change is often the product of shifts in public opinion: At the same time, what the law says influences public opinion. Figuring out what the current rule is--and that's a debate--is not enough: Calling out racially oppressive conduct must be part of the discussion as well.

Sadly, like the Atlantic article, much commentary expresses moral outrage about the alleged suppression of the partygoers' expressive rights, with only a glancing reference, if any, to the morally reprehensible and racist character of their message. There also is no attention given to the racial climate on the campus where this event was part of a pervasive pattern of racially offensive and arguably discriminatory conduct by faculty and students. Defending the right to speak is theoretically distinct from defending the underlying message, but over and over, those who protest the racist character of the event are subject to the most strident critique.

Indeed, the partygoers' conduct is characterized as ambivalent, playful, and only about satirizing an individual, not a group. Some minimize the offensiveness of the conduct by claiming the published photo showed only, "a bit of soot smudged on their faces"--perhaps "black-ish" instead of blackface. The obvious implication is any racial offense taken is a matter of construction that misguided black students and their allies are electing to place upon it.

This argument has been mobilized to defend racially offensive conduct since time immemorial. The Supreme Court's infamous decision in Plessy v. Ferguson, which upheld the constitutionality of segregated train cars, relied on similar logic: Since the law imposed the same penalties on blacks and whites for violating the separate car law, the claim by blacks that state sponsored segregation conveyed a message of inferiority was "[a] fallacy. . . . [resting not on the law itself] "but solely because the colored race chooses to put that construction on it." While the effect of bias, conscious and unconscious, on black people and other racially "othered" groups attempting to breathe in toxic racial environments is well documented, the narrative of "hypersensitivity" continues as though centuries of racist oppression either did not happen, no longer happens, or should not matter if they did.

Prior to Dylan Roof's assassination of nine black men and women praying in a church in Charleston a scant four months ago - part of the racial context in which the partygoers crafted their expressive message - similar arguments were mobilized in defense of the Confederate flag as merely an expression of southern pride and heritage. However, just as the Confederate flag was a symbol born out of anti-black racism and suppression, so too is blackface a practice and "entertainment" bound up in degrading blackness while simultaneously valorizing whiteness. (See Eric Avila's essay on blackface http://equity.ucla.edu/crosscheck/archives/avila-on-blackface/)

At the end of the day, it is important to examine whether the university may have violated the students' constitutional rights to expression by sanctioning (if it did) the organizations, but it is far from the only issue. A very real issue - one we should all be looking at - is whether any institution like a public university, or those debating its decisions, are ever able to clearly and unequivocally denounce racist speech as such, and not merely call it bad or uncivil behavior. Upholding the value of free speech is not contradicted or undermined by doing so when the facts clearly call for it as it does here.